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Section 21 and the New Rules to Prevent Retaliatory Eviction

Section 21 is one of the most important and significant sections in the Housing Act 1988. As you will know, after service of a properly drafted section 21 notice, a landlord can evict his tenant as of right, without having to give a reason.

Arguably it was the cause of the ‘buy to let industry’ – under the previous Rent Act 1977, landlords found it almost impossible to recover their property from tenants. Which is one reason why the households living in the private rented sector had dropped from about 80% in 1014 to about 8% in 1990.

However changes are now on their way.

Retaliatory eviction (England only)

Tenant’s organisations have been calling for years for legislation to prevent landlords from evicting tenants who complain about disrepair. Now they have it – in the Deregulation Act 2015.

After these regulations come into force in October 2015, a section 21 notice will be invalid in the following circumstances…

if it is served after a tenant complains about the condition of their rented property and the landlord fails to provide anadequate response, and

the tenant then goes to the Local Authority and complains and they serve a ‘relevant notice’ on you

An adequate response by the way is one which…

gives a description of the work you intend to do to deal with the complaint and

sets out a time table for doing it.

You can’t serve a notice within 6 months of a Local Authority serving a relevant notice on you.

A relevant notice is basically an improvement notice or a notice regarding remedial action being taken by the Local Authority.

There are exceptions if:

it was the tenant who caused the damage to the property being complained about, and/or

the property is genuinely on the market for sale (but this must be the open market and there must not be any intention to sell to a connected party).

The same rules will also apply to the common parts of a building (for example stairs and hallways outside rented flats) if the landlord had a ‘controlling interest’ and the condition of the common parts affected the tenant’s use of his rented property.

Note that these changes are only for England.

Conclusion

These new rules are undoubtedly going to make it more difficult for landlords to use section 21 – but only…

where the property is in disrepair AND

the landlord has failed to do anything about it AND

the Local Authority Enforcement Officers have served a relevant notice.

Although landlords will inevitably worry about tenants making things up or even deliberately damaging the property themselves and then using this as a defence, it is unlikely that the Local Authority will support them.

It is also possible that Local Authority officers will be so overworked that they will be unable to do all inspections required of them.